The UK’s 48-hour opt-out



In the UK, workers may agree to opt out of the 48-hour maximum working week and around 13% of UK employees continue to work more than 48 hours a week. In September 2015, the TUC reported that the number of people working excessive hours (more than 48 hours a week) had risen by 453,000 – 15% – since 2010, to 3,417,000, following more than a decade of decline in long hours working.



Any agreement with the employer to opt out must be in writing. It must be voluntary and workers cannot be forced to opt out. If workers opt out, the employer must keep records of these workers.



Workers cannot agree to opt out of the 48-hour working week through terms incorporated in a collective agreement. Instead, each individual worker must freely agree to any opt-out, with full knowledge of the facts (Pfeiffer v Deutsches Rotes Kreuz [2005] IRLR 137).



The European Trade Union Confederation continues to campaign to end the opt-out from the 48-hour limit on weekly working time, and to keep the current reference periods for calculating average working time in place. However, in practice, the individual opt-out has spread across other EU states. Well over half the member states have made provision in their national legislation for some form of opt-out, although there are wide variations in the conditions attached to its use.



Employers are bound by an implied contractual duty not to require that employees work such long hours as to damage their health (Johnstone v Bloomsbury Health Authority [1991] IRLR 118).